Contents of this series include citations and text copies all known scholarship published by Hurst. This includes books, articles, contributions to edited works, and books reviews produced by Hurst during his career.

Scholarship Review:

James Willard Hurst published over three dozen books and articles plus numerous book reviews. Certainly, his most widely-read book is Law and the Conditions of Freedom in the Nineteenth-Century United States (1956). This slim volume consists of three essays based upon lectures Hurst gave at Northwestern University School of Law in 1955. In the first essay, Hurst develops his famous "release of energy" thesis. Here he argues that an organizing principle of the nineteenth-century legal and social order in the United States was that the "legal order should protect and promote the release of individual creative energy. . . " (p. 6) A pro-development consensus undergirded nineteenth-century lawmaking. This is not to say, however, that Hurst believed that American law set and achieved instrumental goals. In the third essay, Hurst elaborates on an argument he develops elsewhere that social change was not the result of deliberate, purposeful action but was allowed to take place through the "drift" and "default" of public policy.

Although it has not attained the canonical status of his earlier short book of lectures, Willard Hurst's 1964 masterwork Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836-1915 is the centerpiece of his writing. Hurst's first three books -- The Growth of American Law: The Law Makers (1950) and Law and Social Process in United States History (1960) as well as Law and the Conditions of Freedom -- were preliminary studies in which Hurst worked out the theoretical approach that he applied to the lumber industry study. He fixed on the topic shortly after arriving at Wisconsin in 1937 when he heard a talk by Aldo Leopold. Inspired by Leopold's focus on the inter-relationship between the facts of botany and the facts of wildlife and human beings and what they did with the earth, Hurst's work transcended the recognized boundaries of legal scholarship by drawing upon the inter-relation between different fields of inquiry, to discover insights and truths about the law. As a consequence, despite its seemingly parochial subject matter, Law and Economic Growth is a source of general knowledge about American history and culture and an inspiration to scholars of many different disciplines. In subsequent books, Hurst refined and elaborated the insights that he developed in the course of his work on the timber industry.

Taken as a whole, Hurst's scholarship displays a number of distinctive characteristics: multifaceted empiricism, pragmatism, and a strong moral stance. For sources, he mined published documents of legal agencies -- court reporters, legislative journals, session laws, and reports of the executive branch -- looking for facts, not for theory and doctrine. Following Karl Llewellyn, he focused on the functioning of rather than the formal structure of lawmaking agencies. Hurst generalized from his empirical studies and made highly abstract conclusions about ideas and culture, but he always remained rooted in the real-world experiences of everyday men and women. He also sought to draw from this everyday experience, truths about law in action and about American culture that would enable people to increase their ability to control their own affairs.

Hurst's work has also been extraordinarily generative. The Growth of American Law: The Law Makers became a starting point for later work addressing the role of lawyers in society (Munger 113). Dealing with Statutes(1982) was a synthesis of his ideas about statutory interpretation and "was one of the works directly contributing to the renaissance of statutory interpretation writing in the 1980s" (Eskridge 1181). In the notes to Law and Economic Growth, Hurst identified an enormous range of topics that remained open for further study. And, the scholarly tradition that Willard Hurst began and promoted, both in legal history and in law-and-society studies generally, remains influential to this day.